It adapts because it can and because money, morality and minor commercial advantages ride on its back. So far it has adapted by pushing more and more tangentially relevant information into the courtroom, by creating a punishing weight of written decisions, and by increasing the rapidity and urgency of communication.
Everyone suffers. The judge is tormented by 40-volume court books. The barrister and solicitor are challenged by winnowing millions of pages of discovery down to a measly 40-volume court book and by trying to identify and argue the law where so many cases are nearly on-point (but none truly are). The client is fatigued by litigation and depressed by the slow cash burn. Society is hurt most of all. Our belief in individualised justice is wonderful in concept, but the way it now plays out is as a dead-weight dragging us down.
Technology has fought to keep solicitors, barristers and judges on top of the information that they must master. Searchable databases have replaced leather-bound volumes of authorities. So too have searchable databases made identifying smoking-needles-in-haystacks feasible when a company’s entire email database has been discovered in the course of litigation. Courts have adopted electronic databases instead of paper-based files.
Society has fought back too. In Victoria, the Civil Procedure Act 2010 (Vic) has given judges powers to manage cases to achieve the 'just, efficient, timely and cost‑effective resolution of the real issues in dispute'.
But fighting back so that lawyers and judges can keep their heads above water is not enough. Writing in 2012, the then Chief Justice of the Supreme Court of South Australia, the Honourable John Doyle AC, said '[t]he system is doomed to expire. It cannot cope with the strains': see “Imagining the past, remembering the future: The demise of civil litigation” (2012) 86 Australian Law Journal 240, 247. Doyle CJ imagined a future in which claims would be submitted to the court in outline. Some claims would proceed straight to a default judgment and for other contested claims a judge would decide which claims could be argued and what resources and effort could be devoted to the argument. The system would need more judges, but might lead to more rapid and cost-effective justice.
Technology can do more than we are letting it. It shouldn’t be limited to making existing linear work-processes a bit more efficient (by giving us searchable databases so that not every word need be read) or by letting us keep working on a laptop or smart-phone when we head to a café or the lavatory. Sure, it’s great to be able to communicate faster and work anywhere, but technology so far hasn’t changed how we make decisions or reduced the burdens on anyone.
'Artificial intelligence' invading law firms and the law generally presents both opportunity and risk. Helping get motorists out of parking fines is great (though query whether this is really artificial intelligence), and so is working out the prospects of success for patent litigation. But when artificial intelligence really invades legal decision-making, it will be necessary to consider whether it’s what we want. Lord Neuberger, President of the Supreme Court of the United Kingdom, said in delivering the Lord Slynn memorial lecture last month that '[t]here are many who are sceptical about the Susskinds’ predictions, but there is no doubt but that they could be right. The legal profession should, I suggest, be preparing for the problems and opportunities which would arise from such an enormous potential area of development, and one of the most difficult challenges will be to consider the potential ethical implications and challenges.'
So what should we want? Well, the Civil Procedure Act 2010 provides a pretty good guide. We need to do more than just digitise linear work practices, and we need to do more than tell litigants “no, sorry, you can’t bring all your documents to court because justice is a bit busy at the moment”. Instead, technology should be seizing the opportunity to let the law deliver just, timely, cost-effective results. Without the involvement of technology, justice seems destined to cease to be an exercise in truth-finding. Should we still regard that as justice or will society simply be saying 'yes, this is a decision-making process we can live with'? With technology there’s no reason not continue to have justice like we presently know it, only faster and cheaper.
Technology should be helping lawyers and judges find the links between relevant pieces of information, and identifying the applicable law. Technology should be helping advocates represent their clients better, be more persuasive and more efficient. Technology should be helping clients find lawyers who can represent them effectively and efficiently and charge commensurately. These might seem like incremental changes, but they are advances that allow us to direct the evolution of the law towards efficient, affordable justice.
So, this week, we want to know what technology is changing your legal practice. How is technology helping you to achieve justice for your clients? Feel free to comment, or to email Legal Economy at firstname.lastname@example.org.
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